The National Anti-Doping Appeal Panel (ADAP) reminded Anti-Doping Disciplinary Panels (ADDP) to be more accurate on facts when writing orders and cautioned them to make proper findings on facts of intention before handing out periods of ineligibility to athletes who have tested positive for specified substances which allows for a reduction of a sanction.
The ADAP, chaired by Vibha Dutta Makhija, set aside that grave error, pointed out by weightlifter Mukul Sharma’s counsel Parth Goswami, from an ADDP order that mentioned a test of the supplement showing no presence of the banned substance when neither the athlete nor NADA had mentioned that a sample of the supplement was tested.
“We have seen a large number of orders passed by the Disciplinary Panel where it has not kept the above principles in mind and have awarded four years ineligibility without, in some cases, the intention being established by NADA,” the ADAP order has said, pointing out a slack approach by some ADDPs. The ADAP was dealing with an appeal against an order made by a ADDP, chaired by Vineet Dhanda.
However, that was only a minor victory for Mukul Sharma as the appeal panel upheld the four-year ineligibility period imposed on the 20-year-old. The ADAP noted that the athlete’s intention to cheat has to be established by a probability of circumstances that will indicate the Adverse Analytical Finding (AAF) was due to intentional consumption (of the banned substance).
As proof of the athlete’s intention to cheat, NADA put forward the AAF, the non-disclosure of supplements or medication in the dope control form and the fact that the athlete could not explain how the substance could have entered his body. NADA also cited earlier test results of two samples collected from the athlete to show that he wanted to gain competitive advantage.
The ADAP took no notice of the earlier tests since there was no scientific material to establish a pattern that may indicate the intention of the athlete (to cheat). ADAP also averred that a simple AAF is not sufficient to establish the athlete’s intention to cheat. Only the slender thread of not having listed medication or supplements consumed ahead of competition tied him up in knots.
The purpose of the sub-classifications of ‘Specified’ or ‘Non-Specified’ on the WADA prohibited list is to recognise that it is possible for a substance to enter an athlete’s body inadvertently, and therefore allow a tribunal flexibility when making a sanctioning decision.
Instead of being able to establish that the violation was intentional, NADA’s argument that the athlete did not have any medical justification for the presence of Tamoxifen, a substance banned in-competition, is a veritable suggestion that athletes should come up with prescriptions to show ‘unintentional’ ingestion of banned substances.
This article first appeared in Mail Today on July 30, 2020
